45 N.H. 113 | N.H. | 1863
INDEBITATUS ASSUMPSIT.
The case was tried by the court upon the general issue, and the court found the following facts: — *114
The plaintiff testified that the defendant occupied one-half of a house, and Reynolds the other half, from December 31, 1859 to May 1, 1862; that he believed their families dined together; that a short time before April 4, 1862, he wrote a letter to defendant, requesting him to leave the house, and received an answer; that defendant left the house in May, 1862. The following is a copy of said answer: —
"DOVER, April 4th, 1862.
Sir: — I received your VERY POLITE note and beg to say, I shall remove from the tenement at present occupied by me, within the legal time allowed; although a matter of some inconvenience to my family, after having occupied it for sixteen years and upwards, at so short notice ! ! !
Yours, Very Respectfully,
ROBERT THOMSON."
It was admitted that plaintiff owned the house from December 31, 1859 to said May 1, 1862, and that $230 would be a reasonable rent for one-half of the house for that time.
The court overruled a motion for a nonsuit upon this evidence, and defendant excepted. The plaintiff then testified that Reynolds died in July, 1862.
On cross examination plaintiff testified that he never had any conversation or communication with defendant, about the house or the rent, except said letter and answer; that plaintiff's father died in 1857. Defendant's counsel asked the plaintiff if he ever had an idea that defendant was his tenant, and plaintiff answered that he had. Defendant's counsel asked plaintiff how he got such an idea, and plaintiff answered, from his father's book. Defendant's counsel asked what book? Plaintiff replied, his father's rent book. Defendant's counsel asked him to produce it. Plaintiff produced the book, and passed it to defendant's counsel, who examined it. Plaintiff testified, on direct examination resumed, that pages 8 and 27, in said book were in his father's handwriting, and that he found it among his father's papers.
Plaintiff then offered the memoranda on pages 8 and 27, in evidence. The court admitted them, and defendant excepted. Page 8 of said book is as follows:
Dr. Robert Thompson Cr. Oliver L Reynolds D By cash 55,55 Septr to House Rent from in full for House Rent 20 this time at $200. per up to first of Jany 1846 year water Bill 1, 1847
Rent paid up to Jan'y 1, 1847 1849 Apl 7 By cash by the 1853 Feby 15 hand of 50.00 this day settled in full Tobias Evans for House Rent July 6th By cash 50.00 1850 Octr By cash $200 200. *115 Rec'pted for 1853 Feby 15 By note to Ballance the above account for Rent and we also made a settlement about repairs on house settled about Horses Waggon at the same time Rent paid up to Apl1, 1853. Page 27 of said book is as follows:
1853 Robert Thompson and O. L. Reynolds to E Austin D
April 1 To House Rent from this time at $200 per year
1853 Septr. 21. By cash pr Recd of Dr Thompson 40.00 1855 By paid by the hand of George Matherson in note 200.00.The plaintiff's father, Elijah Austin, who formerly owned the house, died in 1857, when it passed by descent to the plaintiff, who came of age December 31, 1859.
The defendant and said Reynolds, who was a nephew of said Elijah, occupied the house for about 16 years prior to May, 1862, when the defendant left it at the plaintiffs request. The plaintiff claimed the right to recover $460, as the rent of the whole house from December 31, 1859 to May 1, 1862, but asked the court to assess damages only in the sum of $230, as the rent of one-half of the house, or one-half of the rent of the whole house, for that time, and if the plaintiff is entitled to recover anything the court assess the damages at $230 and interest from the date of the writ.
The defendant and his family occupied the easterly half of the house, and said Reynolds and his family occupied the westerly half, but both families took their meals together at the same table. The parol contract for hiring the house was made by said Reynolds and Elijah Austin, and, they both being dead, it did not appear what that contract was, except as it might be inferred from circumstances. It was understood between Reynolds and the defendant that Reynolds should pay the rent of the whole house, should pay the butchers' bills, and the defendant was to pay other bills.
Subject to the plaintiff's exception, the defendant introduced in evidence a release, of which the following is a copy:
"Whereas, the undersigned have for many years past, in the exercise of friendly relations, contributed mutually to the expenses of each other's family and have had a free and friendly interchange of borrowing and lending, and have kept no account thereof minutely, but are mutually satisfied to consider each free of any liability to the other therefor, and are desirous of settling the same, so that hereafter there may be no investigations on the subject of debtor and creditor in relation thereto between them: Now, therefore, we do each hereby mutually release to the other *116 all debts, dues and demands, and claims of every nature which the one has upon the other, and we do agree that this shall be a final settlement of all matters between us from the beginning of the world to the present time.
In witness whereof we have hereto set our hands and seals, this first day of January, A. D., 1861.
O. L. REYNOLDS, (seal.)
ROBERT THOMSON, (seal.)"
After the date of said release, said Reynolds and defendant continued to live and conduct their affairs as before, and never had any other settlement. Defendant testified, subject to plaintiff's exception, that he occupied one-half of the house at Reynolds' request, and never hadany talk with the plaintiff, or his father, about the house or rent; that defendant attended Elijah Austin and his family as physician at intervals during the time he occupied the house and presented bills for services, which were paid; that neither plaintiff nor his father ever demanded rent of him, and that he never paid any rent to either of them; that he and Reynolds had an arrangement for mutually keeping house, that Reynolds paid the most towards their expenses at first and defendant paid the most afterwards; that on one occasion when Elijah Austin was at dinner at said house with defendant and Reynolds, said Elijah asked Reynolds for money, that Reynolds said he had none and asked defendant if he had some, that defendant said he had $40 at his office, that Reynolds told Elijah to call at defendant's office for it, that Elijah did so call and defendant paid him $40; that defendant understood he was lending the money to Reynolds. Defendant further testified, subject to plaintiff's exception that by the word "legal" in his answer to plaintiff's letter he meant twelve months notice, as Reynolds told him not to go, as he was Reynolds' tenant; that he showed plaintiff's letter to Reynolds who told him to take no notice of it as he was Reynolds' tenant, and plaintiff could not get him out for a year.
The original papers and rent book used at the trial are made a part of the case.
The questions of law arising upon the foregoing case were reserved. The defendant's first exception seems properly abandoned, for we think that the denial of the motion for a nonsuit was right.
It has been said that "the production of papers upon notice does not make them evidence in the cause, unless the party calling for them inspects them so as to become acquainted with their contents; in which case the English rule is, that they are evidence for both parties." 1 Greenl. Ev. sec. 563; 1 Stark. Ev. *403; Roscoe Ev. 6. Phillips, however, merely states that it has been so held; 2 Phill. Ev. (3d Am. *117
Ed.) 222; while Tidd says that an inspection of papers by the party calling for them does not make them evidence for the other party. 2 Tidd Pr. 737. The only reason given for the supposed rule is, "that it would give an unconscionable advantage to enable a party to pry into the affairs of his adversary, for the purpose of compelling him to furnish evidence against himself, without at the same time subjecting him to the risk of making whatever he inspects evidence for both parties." Greenl. Ev. sec. 563. But as the party notified is not obliged to produce the papers, and as he may, if he produce them, decline to allow them to be examined except upon the condition that, if examined, they shall be read in evidence, Huckins v. Ins. Co.,
The English cases cited do not establish the rule as laid down in the books first quoted. If in Sayer v. Kitchen, 1 Esp. 210, the defendant inspected the book, as would appear probable from the not very explicit statement of the case as well as from the marginal note, (seeLawrence v. Van Horne, 1 Caines, 287; 2 Tidd. Pr. 737), that case is an authority against the alleged rule. Wharam v. Routledge, 5 Esp. 235, andCalvert v. Flowers, 7 C. P. 386, in fact go no farther thanHuckins v. Insurance Company, and Johnson v. Gilson, 4 Esp. 21, is not in point. In Wilson v. Bowie, 1 C. P. 8, Parke B., held that the plaintiff having inspected a paper produced under notice was not bound to read it to the jury, it not being material to the case. In some of the cases there are dicta broader than the decisions, but a few such dicta at nisi prius can hardly be deemed to have established such a rule. Greenleaf, in the section already cited, says that in the American courts the rule on this subject is not uniform. In a note to Phillips' Evidence, (3d Am. Ed.,) it is said that the principle of the alleged English rule is not clear, and that it seems questionable whether the rule does not go much too far. 2 Phill. Ev. 222 n. 4, and see notes 215 a. and 234. Swift states the rule as it is laid down in Tidd. Swift's Ev. 481. Lawrence v. Van Horne, if an authority at all, goes no farther than Huckins v. Ins. Co.; and the same would seem to be true ofJordan v. Wilkins, 2 Wash, C. C. 482. Sanders v. Duval,
It becomes unnecessary for us, entertaining these views, to inquire if any sound distinction under the alleged English rule could have been founded upon the fact that the book here was not produced under a formal notice. See Bank v. Israel, 6 S. R. 293. Here the plaintiff, being a witness, produced his father's book, upon request, and we perceive no reason why any different rule in this respect should be applied to him from that applied to other witnesses. We are, therefore, of opinion that the inspection of the book by the defendant's counsel did not make it evidence for the plaintiff.
But the plaintiff claims that the entries on the book were competent as entries made by Elijah Austin against his interest. We do not find it necessary to inquire how far entries against the interest of the person making them, merely as such, are competent evidence; (See 1 Greenl. Ev. sec. 147 — 154; 1 Phill. Ev. 293 et seq.; 3 C. H., notes 258; 2 Smith, L. C. *183 and 283; Hinkley v. Davis,
The declarations of Reynolds to the defendant at the time the plaintiffs letter was shown to him, were incompetent. The release executed by Reynolds and the defendant, seems to us immaterial to the issue on trial; and we do not see how it was material whether the defendant, in his letter, by "legal time" meant twelve months or any other length of time.
The arrangement between the defendant and Reynolds did not make them partners, for it provided for no "joint and mutual interest in the profits;" Story Part. secs. 23, 182; Bromley v. Elliot,
The plaintiff also claims that the circumstances of the occupation by the defendant were such as to create a liability in him for rent to the plaintiff as matter of law. If the tenancy created by the agreement between Elijah Austin and Reynolds was such as to have terminated at the death of Elijah, yet from the occupation continued as it was here in the same way, and for such a length of time without objection, and in the absence of evidence of any change in its terms or nature, a jury might have found a continuance of the tenancy upon the same terms and in the same manner as before. 1 Cruise, 243; 4 Kent, 112 and 114; Woodfall L. T. 164; Taylor L. T. sec. 60; Brewer v. Knapp, 1 Pick. 335; Co. Lit. (H. B's) note 383; Norris v. Morrill,
But if, as we might be obliged to hold upon the case as stated, Reynolds was a tenant strictly at will, Currier v. Perley,
From the facts stated or testified to, it does not result as matter of law that the defendant was tenant of the plaintiff, and, consequently, it remains a question of fact, whether there was any express or implied agreement by which such a tenancy was created. 2 Saund. Pl. Ev. 890; Woodfall L. T. 349. There is no conclusive evidence that Reynolds was in fact authorized to contract for the defendant, or that he used the defendant's name in making the contract for the occupation of the house, or that, if he did, this was known to the defendant; so that the defendant is not shown, as matter of law, to have been bound by a contract made through Reynolds, or by the ratification of any contract made by Reynolds in his name, if any such were made, and whether any such contract and authority or ratification in fact existed is a matter proper to be settled by the jury or the court trying the questions of facts. It may be remarked in this connection that it does not appear at what time, with reference to the arrangement between Reynolds and Austin, or Reynolds' entry, the defendant's occupation commenced, nor at what time with reference to these facts his agreement with Reynolds was made.
Though the defendant entered under Reynolds, he still might become liable as tenant to the original lessor by contract, which might be express, or implied from facts tending to show that such was the understanding of the parties: McFarlan v. Watson, 3 Comst. 286; Doe v.Wood, 14 Mee. W. 682; Levi v. Lewis, 6 C. B. 766; Robie v. Smith;Peirse v. Shaw; and whether there was any such contract express or implied is a question of fact proper to be settled at the trial term.
The case must be discharged.
*160